AI Structured Summary
Not yet generated for this judgment
Judgment
F.M. Reis, J.�Heard Shri S.G. Desai, learned Senior Counsel appearing for the Petitioners and Shri G. Teles, learned Counsel appearing for the Respondent. The above Writ Petition, inter alia, seek to quash and set aside by a writ of certiorari or any other writ, the Judgment dated 19.06.2008 passed by the learned Deputy Collector, Panaji, in Case No. MND/DYCL/APPL/7/2007 and MUND/DYCL/MISC/6/2007 and the impugned Judgment dated 22.02.2010 passed by the learned Administrative Tribunal in Mundkar Revision Application No. 26/2008 and Misc. 150/08/STAY/MRA.
Shri S.G. Desai, learned Senior Counsel appearing for the Petitioners. has assailed the impugned Judgments on the ground that the Respondents were registered/declared as Mundkars in respect of the dwelling house situated in the property surveyed under chalta No. 54 of P.T. Sheet No. 109 by an Order dated 19.11.1984 and, as such, the question of claiming to be Mundkars in respect of the disputed house in the present Petition surveyed under chalta No. 48 P.T. Sheet No. 109 is untenable. Learned Senior Counsel further pointed out that the said disputed portion of the house is part of a larger house which was permitted to be occupied to the mother of the Respondent. Learned Senior Counsel further pointed out that for services rendered by the said mother to the Predecessor in title of the Petitioners. She was permitted to occupy the disputed portion of the house and, as such, the question of claim to be Mundkars of such disputed house would not arise. Learned Senior Counsel has taken me through the Judgment of the learned Deputy Collector as well as the Administrative Tribunal and pointed out that both the said authorities have failed to consider the paramount to claim to be a Mundkar is of a fixed habitation and once the Respondents have accepted that he was a Mundkar of the dwelling house under Chalta No. 54 and P.T. Sheet No. 10, the question of claiming that the Respondents fit into the definition of Mundkar in the subject property would not arise. The learned Senior Counsel has thereafter taken me through the Judgment of the Courts below and pointed out that both the Courts below have misconstrued the relevant provisions of law to come to the conclusion that the Respondents were also Mundkars in respect of the disputed houses. Learned Senior Counsel further pointed out that once the Respondents themselves have approached the concerned Mamlatdar to get themselves registered as Mundkar and having acted upon such Order and purchased the land from the Bhatkar in respect of the dwelling house located in chalta No. 54 of P.T. Sheet No. 109, it was not open to the Respondents to claim that they were Mundkars of the disputed house. Learned Senior Counsel further pointed out that the disputed house is only part of the house and not even a separate unit by itself which further suggests that the disputed house cannot be a dwelling house within the definition under the Mundkar Act. Learned Senior Counsel has taken me through the Electoral Rolls and pointed out that the Respondents are not shown as residing in the disputed house. The learned Senior Counsel further pointed out that despite of the fat that the Respondents were accepted to be Mundkar of the said dwelling house, the authorities below have erroneously granted a declaration to the Respondents that they are Mundkars in respect of the disputed house. Learned Senior Counsel has thereafter taken me through the material on record and pointed out that by no stretch of imagination, can the Respondents claim to be Mundkars of the house located in the disputed property. Learned Senior Counsel further pointed out that the Petitioners have already been declared as Mundkars in respect of the entire house including the part of the house claimed by the Respondents pursuant to an Order dated 03.07.1991 and pursuant to which the Petitioners purchased the entire house in the year 1996. The learned Senior Counsel as such pointed out that the Orders passed by the authorities below be accordingly quashed and set aside and the Order of the learned Mamlatdar dismissing the application for declaration be upheld.
On the other hand, Shri G. Teles, learned Counsel appearing for the Respondents, has supported the impugned Order. Learned Counsel further pointed out that both the authorities below, upon appreciating the evidence on record, have come to the conclusion that the Respondents are the Mundkars of the dwelling house in the disputed property. Learned Counsel further pointed out that these findings of fact cannot be interfered with by this Court in the present Writ Petition. Learned Counsel further pointed out that the orders relied upon by the Petitioners were in the proceedings for registration and, according to him. such Orders are not final and can be challenged in proceeding for declaration. Learned Counsel further pointed out that the present proceedings initiated by the Respondents are proceedings for declaration in terms of Section 8-A of the Mundkar Act and, as such, the Orders passed on the registration application would have no bearing. Learned Counsel further pointed out that the Division Bench of this Court has taken a view that even assuming a registration application has been disposed of. it does not preclude a person claiming to be a Mundkar to seek for declaration of such right. Learned Counsel in support of his submission has relied upon the Judgment reported in Smt. Gulabi Sangtu Devidas and Others Vs. Smt. Prema Govinda Gauncar and Others, Learned Counsel further pointed out that this Court in a Judgment dated 12.10.2012 in Writ Petition No. 573 of 2006, has also taken a view that merely because the registration application has been finally disposed of, it does not preclude a person claiming to be Mundkar to file an application for declaration. Learned Counsel as such pointed out that the application for declaration is very much maintainable and, as such, according to him, the authorities below have rightly come to the conclusion that the Respondents have established that they were Mundkars of the dwelling house. Learned Counsel further pointed out that the circumstances in which the registration application was filed by the Respondents in Order to enable them to get a Sale Deed registered in their favour have been clearly enumerated by the Respondents and as such the authorities below were justified to grant such declaration. Learned Counsel further pointed out that the Respondents are occupying the part of the dwelling house as Mundkar as it is a separate unit with the consent of the original Bhatkar and, as such, the Respondents have satisfied all the ingredients within the definition of a Mundkar under the Mundkar Act which entitled them to get such declaration. Learned Counsel has further taken me through the Judgments of the authorities below and have pointed out that the authorities have come to the conclusion that the Respondents were Mundkars.
I have carefully considered the submissions of the learned Counsel. I have also gone through the records. In order to appreciate the rival contentions, it would be appropriate to take into consideration the definition of the word ''Mundkar'' under Section 2(p) of the Mundkar Act. Which reads thus:--
"2. Definitions In this Act. unless the context otherwise requires--
(p) "mundkar" means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include--
i. a person paying rent to the bhatkar for the occupation of the house;
ii. a domestic servant or a chowkidar who is paid wages and who resides in an outhouse, house compound or other portion of his employer''s residence;
iii. a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and
iv. a person residing in the whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a caretaker of the said house or for purposes of maintaining it in habitable condition.
Explanation -A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person."
On plain reading of the said provision, the essential requirement to establish that a person is a Mundkar of a dwelling house, is to show that he was residing in such house with ''fixed habitation''. In the present case, it would be appropriate to examine whether this requirement has been established by the Respondents to claim that they were Mundkars of the structure located in the disputed property. In the present case, it is not in dispute that the Respondents were already registered as Mundkars by the learned Mamlatdar by an Order dated 19.11.1984. On perusal of the said Order, I find that prior to the passing of such Order, the Respondents were examined in such proceedings. The learned Mamlatdar after considering the material produced by the Respondents has accepted that the Respondents were Mundkars of such dwelling house located in the property surveyed under Chalta No. 54 of P.T. Sheet No. 109. The very fact that the Respondents have themselves deposed that they were Mundkars of the dwelling house located in the said property would suggest that the Respondents accepted that they were Mundkars of the dwelling house located in the said property with a fixed habitation. No doubt, a registration of a Mundkar in terms of Section 29 of the Mundkar Act only draws a presumption under Section 30 of the said Act. In the present case, the presumption does not in her only to show that a person is a Mundkar but also that he is a Mundkar of a particular dwelling house. In the present case, the presumption as such to be drawn in terms of Section 30 of the Mundkar Act is that the Respondents are Mundkars of the dwelling house which was existing in the property under chalta No. 54 of P.T. Sheet No. 109. The contention of Shri Teles, learned Counsel appearing for the Respondents, that such presumption is rebuttable, cannot be disputed. But that would only mean that a particular person is not a Mundkar of such dwelling house as shown in the registration record. It cannot be accepted that such a person who has already got himself registered as a Mundkar, can thereafter say that he is a Mundkar but not of such dwelling house as shown in the register of Mundkar which was entered pursuant to an Order passed by the learned Mamlatdar. Under such circumstances, the contention of Shri G. Teles, learned Counsel, that the presumption can be rebutted to the said extent sought to be contended, cannot be accepted.
In such circumstances, as the Respondents have already been registered as Mundkar in terms of Section 29 of the Mundkar Act in respect of a particular dwelling house. the only aspect to be examined is whether such person can have another fixed habitation in the same city of Panjim. It is not disputed that the claim of the Respondents is that they are Mundkars in respect of two properties located in the same city belong to two different persons. In such circumstances, it would be appropriate to examine what is the dictionary meaning of fixed habitation. Black''s Law defines fixed habitation as under:
"habitation. 1. The act of inhabiting; occupancy. 2. A dwelling place; a domicile. 3. Civil law. A nontransferable and nonheritable right to dwell in the house of another."
The person may have many residences but he can only have one fixed habitation at a particular period of time. In the present case, a person cannot claim to have two fixed habitation on the appointed date in the year 1975 at two places in two different properties. In the present case, considering that the Respondents were already registered as Mundkars in respect of the house located in the property under chalta No. 54 of P.T. Sheet No. 109, the fixed habitation of the Respondents would be at such place. Even the preamble of the Mundkar Act does not suggest that the protection under the said Act would extend to one Mundkar in two dwelling houses. In such circumstances, merely because the Respondents'' mother was residing in the disputed portion of the house as it is claimed that she was working for the original owner as a domestic caretaker, by no stretch of imagination, can it be construed that she had a fixed habitation in such portion of the house. Apart from that, it cannot be acceptable that a person can have fixed habitation at two different places in the same city. Considering the definition of the word "mundkar'', as defined under Section 2(p) of the Mundkar Act. I find that the authorities below have failed to consider that the Respondents have failed to establish the necessary ingredient of fixed habitation in the disputed house located in the suit property to claim that they were Mundkars of such house.
Apart from that, the Respondents have not examined the Bhatkar of the property under chalta No. 54 of P.T. Sheet No. 109 to consider whether the presumption under Section 30 of the Mundkar Act has been rebutted. No evidence has been adduced that the Bhatkar therein had in fact supported the case of the Respondents that they were not Mundkars of the dwelling house which was located in the property under chalta No. 54 of P.T. Sheet No. 109. When such evidence has not been adduced, it is not open to the learned Counsel appearing for the Respondents to submit that the presumption under Section 30 of the Mundkar Act stands rebutted. If at all the Respondents wanted to establish the circumstances in which such registration was obtained, it was necessary for the Respondents to produce cogent and reliable evidence preferably that of the owner of the property surveyed under chalta No. 54 of P. T. sheet No. 109 to establish such contention. Besides that, on perusal of the recitals of the Sale Deed whereby the Respondents have purchased the property under chalta No. 54 of P.T. Sheet No. 109, I find that the recitals clearly disclose that the Respondents were Mundkars of the dwelling house on which count the said Sale Deed was executed. In such circumstances. the contention of Shri G. Teles, learned Counsel, that the Respondents were not Mundkars of the said dwelling house, cannot be accepted. In fact, Shri G. Teles, learned Counsel, did not dispute that a Mundkar cannot have two fixed habitation. Once the Respondents themselves opted to take recourse to filing an application for registration in respect of such dwelling house, the Respondents are now estopped from raising such contention in respect of the disputed house located in the disputed property.
On perusal of the Order passed by the learned Mamlatdar whilst disposing off Case No. MND/19/96, upon appreciating the evidence on record, the learned Mamlatdar has rightly held that in order to claim to be a Mundkar in terms of the Goa Daman and Diu (Protection and Eviction) Mundkar Act, 1975, herein referred to as Mundkar Act, a person has to prove two things namely that he was lawfully residing in the house with a fixed habitation as on the appointed date and that he should reside with the consent of the Bhatkar. The learned Mamlatdar further found that the Respondents have miserably failed to establish the first ingredient, namely the fixed habitation. The learned Mamlatdar has also taken note of the fact that as per the document exhibit Pw. 1/A. the Respondent was registered voter of Panjim Constituency from the house No. 16 of Panaji Municipality in the ward of Bhatulem of Panaji, Goa. The learned Mamlatdar also noted that the Respondents had not obtained any electrical connection or house tax in respect of the disputed house from the Municipality. The learned Mamlatdar thereafter appreciated the evidence on record and came to the conclusion that the Respondents have failed to prove that he is lawfully residing in the suit house with a fixed habitation on the appointed dated. Consequently, the application for declaration filed by the Respondents came to be rejected. The Respondents thereafter preferred an Appeal before the learned Deputy Collector. The learned Deputy Collector, however, has taken note of the Judgment of this Court to hold that an application for declaration was maintainable though there was an Order of registration in favour of the Respondents herein. The learned Deputy Collector relied upon the said entries in the electoral rolls to hold that the Respondents had established the ingredients of fixed habitation under the Mundkar Act. The learned Deputy Collector further noted that the Order of registration obtained by the Respondents in respect of the other dwelling houses was for the purpose of the registration of the Sale Deed. The learned Deputy Collector as such found that the Order passed by the learned Mamlatdar was unsustainable and, consequently, set aside the Order of the learned Mamlatdar passed in favour of the Petitioners. The Petitioners thereafter preferred a revision before the learned Administrative Tribunal which came to be disposed of by Judgment dated 22.02.2010. The learned Tribunal has noted that the suit dwelling house is existing in the property surveyed under chalta No. 48 of P.T. Sheet No. 108 of Panaji City. The Respondent was registered as a mundkar by an Order dated 19.01.1984 in respect of another dwelling house located in another property. The learned Tribunal has taken note of the fact that the electoral rolls in respect of House No. 16, inter alia, show the names of the Respondent and his family. The learned Tribunal has accepted that the Order for registration was obtained for the purpose of registering the Sale Deed. The learned Tribunal as such found that the Respondents have established fixed habitation to hold that the Respondents were Mundkars of the disputed dwelling house. The learned Tribunal as such found no error in the Order of the learned Deputy Collector and, consequently, dismissed the revision filed by the Petitioners.
On perusal of the findings of the learned Deputy Collector and the Tribunal, much reliance has been placed on the electoral rolls produced by the Respondents. Merely entering the names in the electoral rolls by itself would not suggest that a person is residing with a fixed habitation. In the present case, the Mamlatdar in earlier proceedings for registration has accepted the contention of the Respondents that they had a fixed habitation in respect of the dwelling house located in the property surveyed under chalta No. 51 of P.T. Sheet No. 109. Admittedly, the Respondents have not pleaded in their application the circumstances in which such order of registration was obtained by the Respondents. Apart from that Mr. Teles, learned, Counsel appearing for the Respondents, fairly accepted that in the deposition before the learned Mamlatdar. such aspects were not deposed by the Respondents. In such circumstances, merely on the basis of oral arguments, the learned Deputy Collector and the learned Tribunal were not justified to hold that the Order of registration was obtained for the purpose of executing the Sale Deed. The very fact that for the purpose of executing the Sale Deed the Respondents had to establish that they were Mundkars, would itself show that such Sale Deed of the dwelling house was executed in favour of the Respondents as they were Mundkars of such dwelling house. As already pointed out herein above, the Respondents have failed to examine the owner of the property where the said dwelling house was located to support their contention that they were not Mundkars of the dwelling house located in the said property under chalta No. 54 of P.T. Sheet No. 109. The presumption in terms of Section 30 of the Mundkar Act has not been rebutted by the Respondents as. admittedly, there was no admissible evidence produced by the Respondents to rebut such presumption. As such, the question of allowing two Orders to the effect that a person is a Mundkar of two dwelling houses which would entail two fixed habitations, would be totally untenable in law and in such circumstances. I find that the learned Deputy Collector as well as the learned Tribunal were not justified to set aside the order passed by the learned Mamlatdar. The learned Mamlatdar had minutely appreciated the evidence on record to come to the conclusion that the Respondents have failed to establish the main ingredients that they were occupying the disputed dwelling house lawfully with a fixed habitation to meet the requirements of the definition of a Mundkar in terms of the Mundkar Act.
In such circumstances and for the reasons stated herein above, the impugned Orders passed by the learned Deputy Collector and the Administrative Tribunal, cannot be sustained and deserves to be quashed and set aside. For the aforesaid reasons, Rule is made absolute in terms of prayer clause (a) with no orders as to costs.